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Robert J. Mintz
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Key Factors to Consider

Selecting the proper jurisdiction for the Offshore Trust is a matter of critical importance. As a general rule, the jurisdiction should have a well-established trust law favorable to asset protection strategies. Further, it should be inconvenient or nearly impossible for a U. S. creditor to reach the assets of the trust by commencing an action in the foreign country.

Consider the following factors when selecting a jurisdiction for an Offshore Trust:

Ease of Communications

Communication with the foreign trustee must be convenient. Fortunately, the use of e-mail and fax as well as improvements in telephone technology have made communication with even the most geographically remote locations a relatively simple procedure. Using only English speaking countries avoids language barriers which can cause delays or costly mistakes.

Experienced and Well-Established Trustees

The country where the trust is established must provide a choice of responsible and experienced trust companies from which to select a trustee. The trust companies must be experienced in the area of asset protection and understand the nature of their peculiar responsibilities.

No or Low Tax Jurisdiction

Income earned by the Offshore Trust must not be subject to taxation in that jurisdiction.

Strict Bank Secrecy Laws

The country must prohibit disclosure of customer information by local trust companies and financial institutions.

Favorable Trust Laws

Many foreign jurisdictions do not recognize the existence of trusts or severely restrict these arrangements. It is important that the law of the country allows the greatest degree of flexibility in establishing the trust to meet privacy and asset protection objectives.

Stable Local Government

Political and economic stability is essential to the proper functioning of the trust. A country which may have its legal system or its financial institutions disrupted by unexpected forces should not be chosen.

Favorable Asset Protection Laws

The existence of laws designed to encourage the formation of trusts used for asset protection strategies is an essential factor. If a creditor elects to file a lawsuit in the foreign jurisdiction seeking to set aside the trust, the laws of that country must make it impractical for the creditor to obtain a successful result. A country which has no treaties with the U.S. and does not enforce foreign judgments is critical to the success of the plan.

Absence of Exchange or Currency Controls

The ability to move funds, if necessary, in and out of the jurisdiction without interference or restriction by local authorities is a requirement in selecting a location.

Confidentiality

The country which is chosen must allow for complete confidentiality of information concerning the settlor and the beneficiaries of the trust.

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